Think before you Tweet

Defamation is probably the last thing on your mind when you post a quick comment on Facebook or Twitter or post an online review – but be mindful ill-considered posts may well constitute defamatory publications. Re-tweeting a defamatory tweet or sharing a defamatory Facebook post may also constitute publication of the defamatory material so care must also be taken with what you re-tweet or share.

Defamation is the civil wrong or tort of injuring the good reputation of a person or corporation* by publication (communication) of a false and derogatory statement without legal justification (defence).

Defamation is generally governed by the Defamation Act 2005 (Vic) and uniform legislation applies in all states and territories, although the common law may still apply.

For a defamation action to succeed and the communicator be held liable, the person complaining of the defamation must prove:

the communication or publication

to a third party

of a defamatory matter

of and concerning, or identifying, the complainant

without lawful justification (defence).

Publication is not just limited to publication in a newspaper and can be made in any way including in writing, orally, gestures, images or electronic dissemination (i.e. email, tweet, Facebook post, Instagram post, blog, vlog, post on an online forum).

Communication or publication must be made to a third party, being at least one person other than the person who claims to have been defamed.

A publication will be defamatory where it either directly or by implication conveys a meaning that in the minds of ordinary reasonable people would injure that person’s reputation.

The defamatory matter must identify the person. This could be by name or though sufficient information that a reasonable person would be able to identify the person the subject of the publications.

There are a number of lawful justifications (defences) that may apply including:

justification (substantially true)

contextual truth (where implications are also made that are substantially true)